Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Wednesday, 9 October 2013

On the Appin Murder (1752)

I have been struggling to know what to make of this story - the apparent attempt to re-try James Stewart, convicted and hanged for the murder of Colin Campbell in 1752 (better known as the Appin Murder). A team of modern day forensic experts re-examined the evidence, relating to ballistics etc, before a retired senior judge, and a jury of the public were asked to determine guilt.

Not surprisingly, for it is widely accepted that he was made a scapegoat for the killing, they concluded that James Stewart must have been innocent, and that Alan Breck Stewart (the main suspect, who James Stewart
was charged with abetting) could not be held responsible in the absence of evidence as to his whereabouts at the time. Indeed they conclude therefore that if there was no clear evidence that Breck Stewart committed the crime, then James Stewart could not have abetted its commission, and that there was no basis for an indictment against him.

But this is hardly news. The trial is a notorious miscarriage of justice: a politically motivated trial aimed at suppressing dissent in the turbulent period following the 1745 rebellion. James was scapegoated, a convenient target for the authorities because he was known to have quarreled with the victim and was, moreover, a leading member of the rebellious local Stewarts. The trial was held in Campbell country - Inverary - before an unsympathetic judge and jury. Legal argument was limited and legal niceties such as doctrines of complicity were brushed aside in the rush to obtain a conviction. Moreover, there was nothing that we would understand as forensic evidence, and the kind of legal protections that we take for granted today were considerably less robust. So it is hardly surprising that, judged by modern standards of forensic evidence and criminal procedure, the outcome is found wanting. So why do it

James Stewart's Monument,
Perhaps the only novel finding is that the two shots which were fired came from two different muskets, rather than a single one, as had usually been assumed - a finding which resonates in a strange way with contemporary conspiracy theories about multiple shooters of President Kennedy in Dallas. But this does not help to identify the shooter, or tell us if Breck Stewart fired one of the shot. It is, though, consistent with the idea that there was a planned element to the attack, as the two shots must have been fired more or less simultaneously as witnesses reported hearing a single shot and it was long assumed that the two musket balls found in the victim had been shot at the same time from the same gun. This underlines the theory that the attack was motivated by political discontent - as we knew anyway - though this still does not support any assumption that James Stewart was involved.

Robert Louis Stevenson

The case clearly fascinates - though it is likely that few would have heard of it today were it not for the brilliant novels of Robert Louis Stevenson (Kidnapped and Catriona) which took the case as their backdrop.
Even in these works Stevenson is careful to hedge his bets - while he seems to suggest that Breck Stewart is responsible, he does not go so far as to depict him actually pulling the trigger, and in other respects paints him as a romantic rebel with whom the reader sympathises. And as befits someone who is known to have read the legal account of the trial (and was trained as a lawyer) he does not pretend that the trial was fair - and even without the benefit of contemporary forensic evidence he is able to lay bare the injustice of the outcome.

So faced with these alternatives it is surely better by far just go and read the novels - for which we surely need no excuse.

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